Information & Ethics Committee on Feb. 16th, 2011

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Do I have more time, Chair? I'd love to ask another question.

[The Chair, Liberal, Shawn Murphy]

You have one minute, Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Maybe you could reinforce the point you were making in your brief about how the Freedom of Information Act combines with this greater openness. You called it the core backbone. Maybe you can talk about the importance of maintaining and improving that system as well as doing this other work.

[Gary Bass]

The Freedom of Information Act in most countries is a vital “right to know” tool.

I am obviously a huge fan of the Freedom of Information Act. At the same time, I think it's outmoded today; I think what we want to achieve, as I tried to articulate in the brief, is a “right to know” mindset. What we really want to do is create the right kinds of standards or floors or mechanisms whereby all of our federal agencies are required to voluntarily disclose certain types of information. Then the Freedom of Information Act becomes the safety net whereby if there is a problem with that voluntary disclosure system, there is a legal pathway through which citizens can redress their government, and there are judicial checks on that system.

So I am a huge fan of freedom of information, but I think that in today's age we want to create an even broader “right to know” agenda that is much more active, wherein the citizenry doesn't have to go item by item and request it.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Siksay.

Mr. Bass, the next member of the committee will be Mr. Harold Albrecht. He's a member of the government, the Conservative Party.

Mr. Albrecht, you have seven minutes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you, Mr. Bass, for sharing your expertise with us today.

Our committee, as you know, has spent a number of weeks looking at this issue of open government and doing a study of it. We've received some extremely helpful witness information, including yours today, so I thank you for it.

I think you'd find general agreement around this table that we all want to move forward on this. My opposition colleagues today implied that we're not moving forward on it, but I need to set the record clear. Five years ago our government introduced the Accountability Act, and we actually gave access to information from a number of crown corporations that up until then were not open to access to information.

In fact, Mr. Chair, we still have some of these crown corporations dragging their feet.

I do not share the pessimism of my opposition colleagues. I just wanted to get that on the record.

One thing I really appreciate about your testimony today is your presentation of what I would call realistic expectations. Too often we hear that once we open up government and get this data out to the public, everything will be fine. You've presented some very real obstacles that you have faced; you've been honest in indicating that there are still gaps that need to be addressed, and I appreciate that.

On that point of the gaps and the challenges, you highlighted three different areas. One was policy direction and implementation: the policy direction is there, but the implementation has not followed at the proper speed. The third one, you said, was data quality.

I want to come back to the second one, in which you indicated that it is the agency that now decides, if I understood you correctly, what is disclosed. You said this has created a bit of a problem. I wasn't able to follow your line of thinking on that. If you could expand on this point, it would be helpful.

[Gary Bass]

Before I do, I want to also restate your first point, which is.... I think we have to understand—at least, it's my personal belief—that open government and transparency are tools for a purpose. They are not solely solutions. They are tools to strengthen democracy, to empower people. There are a whole range of tools. I think one of the key ones is accountability.

The reason I give this preface is because I think it relates to the second point of your question. Under the Open Government Directive, which is really the vehicle by which agencies are trying to do the voluntary disclosure model, it is left totally to the agencies what they put out to the public. It's very important to do this. I'm not diminishing the value of this, but they tend to move more towards what I'll call mission-driven disclosure. For example, at our Environmental Protection Agency, they will put out more data about pollution. At Transportation, they'll put out more information about highway issues or other kinds of transportation issues. That is very essential.

By the same token, they have not put out very much information around transparency within their own agency, that is, to bring greater accountability to the agency itself. How is the agency working? Is spending influenced by special interests? Are we going to get disclosure of government contracts to know whether or not the contracts are really properly being executed? Those kinds of issues are being left undone. Inspector General reports are not disclosed regularly. Communications with our Congress are not. Schedules of our high-level officials are not. There is a range of these kinds of accountability issues that are central to making a government that is trusted by its populace.

That's what I was really trying to drive at—that we need multiple kinds of openness. For that reason, the public interest community has come together over the last year or so to create a set of standards that we think all agencies must follow—every agency, not just one versus another. That standard is going to evolve. As you all looked at our standard, you'd probably say why isn't X part of that? That's fine. That's part of a process. That's great.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you very much. I think I get a better understanding now. It's really important that our committee hears that, because again, it's too easy for us to sit here north of the 49th parallel and think the U.S. has totally addressed this issue, when in fact, as you've pointed out clearly, multiple times today, you're moving ahead but you've got many challenges still to address. I really appreciate that honesty.

I just want to come back to another question that has been asked at different times of different witnesses in terms of the risks, in terms of security and privacy. Sharing information on the web to the people of Canada or the U.S. is one thing, but in an Internet world, that information is available to everyone worldwide. Are there any international risks? I'm not so much talking about government to government as I am about the person who lurks online for information that may....

For example, you said everyone who visits the White House is now registered. Are there any risks in that? Are the visits to congressmen and senators also listed? Those are questions that I think would be helpful.

[Gary Bass]

This is just a quick answer. No, members of Congress do not disclose who they meet with. All the transparency I'm talking about is executive branch, not legislative branch.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

It's important as well, because there's continuing pressure on all of us to open up everything about everything in our lives. That could be a challenge.

[Gary Bass]

I think you're asking a very tough question about the downsides of transparency, but let me break it into two parts: the privacy side versus the security side.

Too often we do privacy versus openness, privacy versus transparency. Instead, a good model of openness and a good model of transparency incorporates principles of privacy. It is not a “versus”; it is a part of a system. Therefore, any kind of open structure you have should respect individual privacy.

We will probably debate till we're blue in the face whether corporations deserve individual privacy rights. So there are going to be lots of grey areas where we'll always have some disagreements. But I think the fundamental principle of protecting an individual's personal privacy is a critical first principle of openness. So let's put that aside and go to the harder one, in my mind, which is security and national security.

If I could just tell you a story, it may convey to you why I think I tend to favour disclosure.

Around where I live in Washington, D.C., we have the Potomac River, and just on the other side of the Potomac is a water treatment facility. It's called Blue Plains. We had a railcar of chlorine, because they use chlorine in the treatment facility. It became widely known that this 90-ton railcar was sitting there.

This is a blueprint for terrorists. They could come and disrupt that railcar of chlorine, and virtually every worst-case scenario showed it going over the White House and Congress. I suppose partisans would say that's a good thing, but we would say it's a bad thing. The whole notion is it's a danger. So the solution was they moved the railcar or hid it. That's not a solution. Instead, what Blue Plains ultimately did, after The Washington Post, our local newspaper, covered this, is they used a different chemical from chlorine, which was a safer substitute. As a result there's now no danger to the community. It was through the disclosure by The Washington Post that this 90-ton railcar was sitting there that the treatment facility modified it and went to an alternative.

Democracy breeds risks. With any kind of disclosure system, there are always going to be risks. I'm not going to say there aren't. But when you weigh the notion of disclosure, I think that openness can breed safety and security. There are always going to be secrets, and there should be secrets, but we have to have a better definition of what that is and make sure it's a narrow classification system. This President, President Obama, has also said not everything that is classified should be classified permanently. We have to also come up with the construct for a declassification system.

Those are some of my quick responses.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Albrecht.

We have limited time on this, colleagues. I'm going to allow each party three more minutes to get any final points that you have on the record, because we do have an hour for this, and he's got a scheduled commitment too.

Dr. Bennett, three minutes, and then we're going to move to Ms. Davidson.

[Carolyn Bennett, Liberal, St. Paul's, ON]

The Obama directive had some timelines associated with it, is that correct, in terms of the expectations of each government department? What were the consequences of not meeting those targets, other than, obviously, it gets in your performance appraisal? I think that's something we desperately need here.

The other question is, in terms of open data, I understand that even the geospatial data in the U.S. that is available here at Stats Canada--but you have to pay--is available for free in the United States. As Liberals, we've obviously been putting out open data, access to information, and accountable spending as three minimums that you would need for websites. You took down the website that was there.

Could you just tell us how you incent this sort of change? Obviously, you've told us from the beginning it comes at the top. It wasn't there with Bush; it is there with Obama. How do you accelerate the progress?

[Gary Bass]

On the timelines, they were very prescriptive in the Open Government Directive, and that was extremely helpful, because it also created this kind of high-energy movement by the agencies to meet this very tight timeframe. It was extremely useful. By the same token, there are no penalties for missing the deadline.

This is a difficult thing. What would be the penalties? What do you do? Dock an agency's pay? There are no simple solutions to this. Do you put a gold star for those that are on time and give no stars for agencies that are not on time? If we could come up with a better structure for creating the kinds of enforcement mechanisms that are needed, that would be wonderful. But I do think that without this timeline, we would not have gotten as far we have gotten. That's incredibly important to have.

To be honest with you, I could talk to you forever, but I don't know the answer to your second question. I think in the process we're going through in the United States this is always going to be a give and take about getting the right information in a timely manner, in a timely and accurate matter, and pushing the agencies to do more. A central element, though, is that it must be timely. It needs to be accurate, it needs to be findable, and it can't be coming with cost unless there is some strange, very unique need.

[The Chair, Liberal, Shawn Murphy]

Thank you, Dr. Bennett.

Ms. Davidson, you have three minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Bass, for your presentation here this afternoon. It's been extremely useful.

I have just two quick questions. You talked about the fact that agencies were originally determining what they were disclosing themselves, and there were some issues with what was being disclosed. You said that now somebody's putting together a standard policy so that people are.... Who is this someone? Who is doing that?

The other question is, what coordination or collaboration did you have with other countries, such as the U.K. or Australia, when you were putting your process together?

[Gary Bass]

I should be much clearer about that floor or standard I was talking about.

That is what many of us outside of government have come together on to encourage the Obama administration to begin doing, because of this concern we have that while valuable information is being released, we want to see other high-priority information. Who did it? It's a unique, if you will, coalition. It's one of the first times ever outside of the government world that journalists and the advocacy community and the academic community have come together to propose this kind of standard or floor. It cuts across political axes, that is, left or right, because almost everybody supports transparency regardless of political ideology. You may want to use it for different purposes, but you want the right to the same kind of data.

In terms of the international, I think there's an interesting effort. You may know that the President of the United States spoke to the UN in September and raised this notion that a year from then, which will be September 2011, many of the countries should come together to talk about stretched efforts to create openness. There is this international open government initiative that is starting to form with multiple countries.

It is at its infancy at this moment, but it would be a great effort to take a look at. I don't know if the U.K and...I didn't hear what the other country was that you're interested in.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

It's Australia.

[Gary Bass]

I believe Australia is involved because of a lot of their performance efforts. I don't know if the U.K. is. There are a number of countries, from Brazil, India, China, and down the line, that have all been interested, and as you can imagine with the list I just gave, they're very diverse kinds of countries.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you very much.

[The Chair, Liberal, Shawn Murphy]

Thank you, Ms. Davidson.

Mrs. Thi Lac, you have three minutes.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Good afternoon. Thank you for being with us.

I will be quick because I want to share my time with Mrs. Freeman. She still has some questions for you. A lot of them, actually.

You mentioned Mr. Obama's political will to implement this policy of transparency. If the will had not come from the president, would open government have been a lot harder to put into place? Would you say that the initiative has been made possible in large part because of the Obama administration's political will?

My colleague will ask the second question.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

You can answer, Mr. Bass.

[Gary Bass]

Okay.

I do think that a great amount should be attributed to the President's commitment to openness. It started with the inaugural address and was completed, as I mentioned, on the first day of office when he not only gave those principles of transparency, participation, and collaboration but issued the freedom of information policy change and another one on presidential records. It was quite a full day focused on transparency.

I agree that had we not had that, the picture would have been far different today; there is no question. The real issue that maybe you should ask is what happens when this administration leaves. Is the barn door now open and you can't close it? Could another administration come in with a different set of policies, more secrecy-oriented or centralized?

This is where I think our Congress has to jump in and think about whether or not codification of some of the policies that the Obama administration has been going through is merited. I think many of us outside of government need to also start to wrestle with what has worked and what has not, to share with our Congress our views around what to codify.